Goreski v Transport Accident Commission
[2023] VCC 1462
•29 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-05311
| ALEKSANDAR GORESKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 August 2023 | |
DATE OF JUDGMENT: | 29 August 2023 | |
CASE MAY BE CITED AS: | Goreski v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1462 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: serious injury – function of the left shoulder – pain and suffering
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s19(17)(a)
Cases Cited: Petkovski v Galletti [1994] 1 VR 436; Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Limited [2011] VSCA 52; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave is granted to the plaintiff to bring common law proceedings for damages under subparagraph (a)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC with Mr C Farinaccio | Shine Lawyers Pty Ltd |
| For the Defendant | Mr P Jens KC with Ms K Manning | Hall & Wilcox Lawyers |
HER HONOUR:
Introduction
1This is an application for leave to bring proceedings for the recovery of damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) by the plaintiff, Aleksander Goreski, in respect of injuries to his left shoulder sustained in a transport accident on 11 March 2020.
2The plaintiff claims he has a “serious injury” as defined by s93(17)(a) of the Act; namely, a serious long-term impairment or loss of a body function, being the function of the left shoulder and makes a claim for pain and suffering.[1]
[1] The plaintiff abandoned his application under sub-paragraph (c) for a severe behavioural disturbance3The injury, as described by plaintiff’s counsel, is a left acromioclavicular (AC) joint disruption, which has likely developed post-traumatic arthritis, and an aggravation of the pre-existing supraspinatus tendon tear.[2] Put more simply, the AC joint injury is a new injury and the injury to the rotator cuff, known as the supraspinatus tendon, is an aggravation injury, both of which were caused by the traffic accident. Plaintiff’s counsel stated it is a combination of aggravation and a new injury.[3]
[2] Transcript (“T) 2, Plaintiff’s counsel para-phrased Dr Pak’s diagnosis in his report at Defendant’s Court
book (“DCB”) 23.
[3] T 4
4The defendant submitted the plaintiff’s injury did not satisfy the serious injury threshold. As it was an aggravation injury, Petkovski v Galletti [1994] 1 VR 436 applied and the plaintiff must establish what injury was caused by the accident and the aggravation injury must meet the serious injury test. The injury to the left shoulder was conceded.
5The onus of proof is on the plaintiff on the balance of probabilities. The test is, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as “at least ‘very considerable” and certainly “more than significant or marked”?[4]
[4] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
6The plaintiff gave evidence and was cross-examined. He provided two affidavits in support of his application, affirmed on 12 January 2022 (first affidavit) and 28 June 2023 (second affidavit).
Background
7This background information is derived from the plaintiff’s affidavits. The plaintiff is 35 years old and lives with his partner. After completing year 12, he completed an advanced diploma in business and then studied mechanical engineering. In 2016, prior to completing his degree, he commenced at his current employer, Rheinmetall Defence Australia and he graduated in 2017.
8On 11 March 2020 at around 8.15 am, the plaintiff was riding his bike to work on High Street, Kew when a car made a right hand turn in front of him from the opposite direction and collided with his right side. He was thrown over his handlebars onto the bonnet of the car before landing on the road. Police and ambulance attended the scene, and he was taken to St Vincent’s Hospital. He had an X-ray of his left shoulder. There were no fractures but a superior displacement of the left clavicle. He was discharged from hospital with his left arm in a sling with painkillers including Endone. He had about two weeks off work, and when he returned to work, he worked from home, so he had flexibility and could take breaks when he needed it. He had difficulty performing tasks around the home and using a keyboard for work in the weeks following the accident. [5]
[5] Plaintiff’s Court Book (“PCB”) 13 -14
9In May and June 2020, he had two corticosteroid injections in the left acromioclavicular joint.
10He states he continues to have pain, weakness and restriction in his left shoulder and has restricted overhead movement and the pain affects his sleep at night.
Aggravation - left shoulder injury prior to the transport accident
11The plaintiff’s left shoulder first flared up in 2011, caused by progressive overuse from resistance training.
12In his first affidavit, the plaintiff referred to having had previous pain in his left shoulder “about 10 years ago” when doing CrossFit training. He stated:
“I had an impingement of my left biceps tendon and minor tear of the supraspinatus around 2011, which was treated with remedial massage and managed with rest over a period of two years. My left shoulder was not causing me any issues in the lead up to the accident.”[6]
[6] PCB 13
13In his second affidavit, he stated he did not experience any ongoing pain and restriction in his left shoulder and left arm up to the time of the transport accident.[7]
[7]PCB 31-32
14In evidence, when affirming the contents of his affidavits were true and correct, he clarified and agreed the medical clinical notes demonstrate he complained of problems in 2017 with his left shoulder.[8] In cross-examination he agreed he had received treatment for the left shoulder up until 2017, when the clinical notes were brought to his attention.[9]
[8] T 6
[9] T 18
15Although he had issues with his left shoulder between period 2011 to 2017, they were not persistent issues.[10]
[10] T 33
16He saw three orthopaedic surgeons, Mr Shane Barwood, Associate Professor Bell and Mr Christopher Pullen for advice about treatment.
17In 2014 he saw Mr Shane Barwood, shoulder orthopaedic surgeon. In his report dated 25 November 2014, he stated:
“I have discussed with Aleks that given his age and his activity level, I think he is likely to continue to tear the tendon and given the marked downward lateral slope to the acromion and the narrow subacromial space, I think he would be best to undergo decompression and cuff repair.”[11]
[11] DCB 39
18He also noted this procedure could be performed arthroscopically.
19In 2014, the plaintiff also saw Christopher Pullen, a shoulder and elbow surgeon but there is no record of the consultation in evidence.[12]
[12] T 103. Mr Pullen was the third surgeon referred to in submissions by Defendant’s counsel.
20In 2015 he saw Associate Professor Simon Bell. In a letter to Dr John Haddad dated 16 February 2015 he noted the plaintiff’s left shoulder had for been troublesome for years. He injected the AC joint with local anaesthetic and steroid, to which the plaintiff had a good response.[13] In a further letter dated 23 March 2015, Associate Professor Bell noted the plaintiff had responded well to the cortisone injection in his AC joint and his symptoms are much improved. He stated:
“For normal daily activities he has no pain and he just has occasional pain with lifting weights fully overhead. On examination he was also much better particularly with no longer any pain on compressing the AC joint. At this stage Aleksander will get back into a gym program”.[14]
[13]DCB 10
[14] DCB 11
21Associate Professor Bell did not recommend surgery.
22The plaintiff’s evidence was, there was differing opinions about surgery to repair the supraspinatus tendon. The plaintiff agreed whilst Associate Professor Bell stated he could resume his gym program, Mr Barwood stated continuation of his gym activities would further tear his supraspinatus.
23The plaintiff was cross-examined about his general practitioner, Dr Wan’s records.[15] On 27 February 2017 Dr Wan wrote to Evado Studios to organise multidisciplinary team care arrangements for the plaintiff.[16] The referral letter refers to patients with “chronic conditions and complex care needs”. The plaintiff’s evidence was that he did not proceed with the care plan and managed his injury conservatively. Further in the absence of symptoms, he continued his weightlifting.[17]
[15] Dr Wan worked at the Hawthorn East Medical and Aesthetic Clinic
[16] DCB 12
[17] T 41
24From 2017 to 2020, the plaintiff was doing weight training and the heaviest weight he lifted was 243 kilos.[18]
[18]T 30
Serious injury
25I turn to consider the pain and suffering consequences of the injury and to President Maxwell in Haden Engineering Pty Ltd v McKinnon,[19] in considering the plaintiff’s experience of pain and the disabling effect of pain.
[19] [2010] VSCA 69
26In his second affidavit, the plaintiff deposed prior to the transport accident he did not experience any ongoing pain and restriction in his left shoulder and left arm. Further, in the first 12 to 18 months after the transport accident he thought he would recover and be able to live his life in the same way that he had prior to the accident.[20]
[20]PCB 31-32
Pain and suffering
27In his first affidavit, the plaintiff stated:
“I have constant aching pain in my left shoulder. The pain around my AC joint is present most of the time. The pain in my left shoulder is easily aggravated when lifting my arm overhead, reaching overhead, doing forceful or repetitive activities with my left arm or when turning to the left. The movement and range of motion of my left shoulder is reduced.
When aggravated, I have pain that radiates from my left AC joint vicinity into my neck, down the left arm and into the inside of the elbow. From time to time, I also have pain in my left elbow and left hand. I also get pins and needles in my left hand. The pins and needles radiate down my left arm into my hand for prolonged periods of time. It requires repositioning of the arm and clicking/cracking of the shoulder to alleviate both numbness and pain. If I hold my arm in a certain position, the pins and needles are there all the time. I have weakness in my left side, reduced grip strength, and numbness from time to time in the fourth and fifth finger of my left hand
I have difficulty lifting objects, often even light objects, above shoulder height. My pain is easily aggravated and requires conscious effort when I push down or lift up with my left arm with force or if I perform repetitive manual tasks with my left arm.
My shoulder continues to swell. There is still a bony prominence where the clavicle meets the AC joint. There is restricted movement, and often pain when I try to lift my left arm above head height, especially if aggravated.
When it comes to twisting my neck/head to the left or right, the pain in my left shoulder sometimes increases. It is worse when turning to the left and there is often prominent clicking. I have difficulty reaching behind my back with your left arm because of my left shoulder pain, restriction in mobility and discomfort.”[21]
[21]PCB 15-16
28In his second affidavit the plaintiff stated:
“Despite having tried to manage my pain conservatively for almost 3 years, I continue to suffer from pain, restricted movement and difficulty performing repetitive lifting, reaching or forceful activities with my left shoulder, as referred to in paragraph 15 of my first affidavit.
I continue to have constant pain in my left shoulder and dull aching pain around the AC joint of my left shoulder most of the time. My left shoulder movement has reduced, as has the range of motion in my left shoulder.
In addition, the pain in my left shoulder – particularly my AC joint – continues to be aggravated, as referred to in paragraph 16 of my first affidavit. My left shoulder pain levels can take several days to reduce, with rest, when the pain is aggravated. I need to rest my left arm when my left shoulder pain is aggravated. In addition, I also get pins and needles in my left arm/left hand if I extend my left arm out away from my body or hold my left arm in certain positions away from my body. The severity of my pins and needles continue to be aggravated, especially when using or lifting my left arm away from my side. I also often wake up with numbness in half my hand that begins in my little and ring finger and radiates into the hand. I also suffer from reduced grip strength and general left arm weakness because of my left shoulder injury and have persistent spasm in my left triceps muscle.
My left shoulder pain, particularly when aggravated, also radiates down my left arm to the inside and outside of my left elbow and above the elbow into the forearm, as well as into my neck, jaw and sternum. From time to time, I experience swelling, intense aching and/or flareups of pain my left shoulder. I have adapted the way that I lift with my left hand, because I sometimes unexpectedly trigger the pain in my left shoulder when lifting relatively light objects, such as a jug of water, a saucepan and/or a bottle of milk. This can aggravate the sharp pains in my shoulder for many days at a time.
My left shoulder pain is quite temperamental. My pain and restriction can be aggravated unexpectedly and bring on a range of different symptoms and consequences. I have difficulty using my left arm away from my side, above shoulder height or when lifting objects repetitively, especially heavy objects.
I get a sharp localised pain in the AC joint of my left shoulder when I increase the use and mobility of my left shoulder/left arm. Putting my left shoulder/left arm under load causes increased pain. My left arm feels weak, lacking in strength and vulnerable when using my left arm away from my side and/or above shoulder height.
Twisting or turning my head and neck to the left is limited because of my left shoulder restriction and can also lead to a worsening of the pain in my left shoulder. Accordingly I am prone to a stiff neck and a clicking sensation in my neck and tightness in the sternum, generally when my shoulder symptoms are worse.
I continue to experience swelling in my left shoulder as referred to in paragraph 18 of my first affidavit. The swelling sometimes comes on unexpectedly or if I try to increase the load when doing left shoulder exercises or lifting a weight off the weight rack in the gym. I usually resort to taking Nurofen or Voltaren when my left shoulder swells up. Because of the pain, swelling, weakness and the aggravations to my left shoulder injury of doing gym exercises, I avoid doing left arm, overhead exercises, chest exercises or shoulder presses and thus many exercises are no longer performed.
As referred to in paragraph 19 of my first affidavit, I continue to have a restricted range of motion in my left shoulder and when reaching behind my back with my left arm because of my left shoulder injury.”[22]
[22]PCB 26-28
Sleep
29In his first affidavit the plaintiff stated his sleep has been significantly impacted by the transport accident. He cannot sleep on his left side when his left shoulder pain is aggravated and he wakes up when he rolls on it. If the pain has been worse during the day, he has trouble getting to sleep and wakes up at least 3-4 times a night. He sleeps separately from his partner 2-3 nights a week because his waking due to pain disturbs her.[23]
[23]PCB 17-18
30In his second affidavit, plaintiff deposed his sleep continues to be impacted by his left shoulder injury. He estimates he gets 4 to 6 hours sleep per night, interrupted by pain or complete numbness in his left shoulder/arm. He and his partner often sleep apart because he frequently wakes during the night which places additional strain on their relationship.[24]
[24]PCB 29
Army Reserves
31In his first affidavit the plaintiff deposed prior to the transport accident he was going through a recruitment process to join the Army Reserves. Joining the Army Reserves had been a lifelong ambition for him, and he cannot see how he can pursue this goal because of his left shoulder injury. He is extremely upset and disappointed he is not able to fulfil this ambition.[25]
[25]PCB 18
32In his second affidavit the plaintiff deposed he has not been able to pursue his lifelong ambition of joining the Army Reserves for which he had been training and was seeking to be recruited to prior to the transport accident.[26]
[26]PCB 29
33The plaintiff included an email dated 11 March 2020 from the Australian Defence Force indicating he had been placed on the standby list for the officer selection board for the Australian Army Reserves.[27]
[27] PCB 127-130
34The plaintiff stated being in the Army Reserves was something he was interested in “for a very long time. I entered working as an engineer in defence for my interests. Now my personal pursuit for the army was, on one hand, to serve the country, the other personal reasons for what I’d say experience, a test.”[28] The plaintiff stated his Army Reserves assessment was postponed because of the traffic accident, “And then a few months passed and a few months passed and then I realised I wasn’t going to make a very quick bounce back recovery.”[29]
[28] T 54
[29] T 64
35Since his transport accident he has not felt fit to pass the army medical assessment.
36When asked when he next applied for the Army Reserves the plaintiff stated, “…regardless of your role in the army you need to perform the pre-fitness assessment and go to Kapooka for the same training regardless whether you’re a clerk or a truck driver or a front line soldier.”[30] He did not have a further assessment following the transport accident and disagreed he could ask his general practitioner for a clearance with his new injury. It was put to the plaintiff that Dr Wan could give him full clearance for the army, given his report stated “He seems to have full range of movement with his left shoulder, and has no clear restriction to his normal activities and function. He should have full capacity for work.”[31] The plaintiff stated the capacity for work was in relation to a desk job.[32]
[30] T 63
[31] PCB 48-49
[32] T 66
37The plaintiff stated Dr Wan did not physically examine him when he prepared the 21 March 2023 report. The plaintiff’s counsel submitted he was not properly assessed for the purposes of that report but was for the 17 July 2023 report.
Household duties
38In his first affidavit the plaintiff deposes to difficulties undertaking household tasks at home. He has to be careful not to perform any sudden forceful repetitive reaching movements which would aggravate his left shoulder and result in swelling and pain. This includes reaching to get glasses or cups out of overhead cupboards. This has meant his partner performs the majority of household duties because of his ongoing pain and restriction. He can help with some jobs such as vacuuming and cleaning the bathroom, though avoids heavy lifting such as the groceries or the laundry.[33]
[33]PCB 19
39In his second affidavit the plaintiff deposed he continued having difficulties with household chores that involve weight or load bearing, lifting or reaching above shoulder height or away from his body with his left arm. He avoids jobs that involve repetitive reaching such as hanging out the washing or getting glasses or cups from cupboards above shoulder height. The increased workload for his partner has impacted negatively on their relationship.[34]
[34]PCB 29-30
Personal consequences
40In his first affidavit the plaintiff deposed he has difficulty washing his hair as it can aggravate the pain in his left shoulder. He finds getting dressed difficult such as lifting his arm through a sleeve. In his second affidavit he deposed pain or swelling makes it difficult for him to reach above head height or move his arm out the side when doing things like getting dressed or washing his hair.[35]
[35]PCB 30
41Since the transport accident, the plaintiff feels his libido has diminished. His sexual intimacy with his partner has been impacted particularly since they have started sleeping separately some nights and her added responsibility to do household duties.[36]
[36]PCB 21
42In his second affidavit the plaintiff deposed he and his partner are less intimate than prior to the transport accident. He describes them as having drifted further apart and that they have delayed planning to start a family because of his left shoulder injury.[37]
[37] PCB 32
Physical fitness
43In his first affidavit the plaintiff deposed prior to the transport accident the plaintiff was physically fit and active and training to compete in weightlifting at a state level. He also completed in short triathlons. Since the accident he has gained more than 15 kg in weight and his engagement in physical activities has reduced due to his left shoulder injury.
44He is restricted in the exercises he can perform at the gym because of his left shoulder pain and restriction. He has difficulty with overhead exercises. He is trying to strengthen and rehabilitate his left shoulder but is restricted by pain.[38]
[38] PCB 20
45In his second affidavit he deposed his physical fitness continues to be significantly impacted by his left shoulder injury and places restrictions on his gym activities. The plaintiff states he has gained 25 to 30 kg in weight since the transport accident.[39]
[39] PCB 31
Treatment and medication
46The plaintiff takes Voltaren and Nurofen for anti-inflammatory medication and pain relief. He does not take prescription pain relief although he was prescribed strong pain relief in the five days following the traffic accident.
47On 17 March 2020 the plaintiff had an MRI scan of his left shoulder which showed an injury to his left AC joint. His general practitioner referred him to an orthopaedic surgeon, Mr Russell Crowe who recommended he see a physiotherapist. He consulted sports physiotherapist, Greg Dea on 19 March 2020. Mr Dea assisted with rehabilitation and physiotherapy treatment. The plaintiff was also referred for remedial massage, acupuncture and treatment from an osteopath and was also referred to sports physician, Dr Branson.
48On 20 May 2020 plaintiff had a further MRI scan of his left shoulder and on 28 May 2020 he had a guided steroid injection into his left AC joint. In about June he had a further corticosteroid injection into the left AC joint. He had temporary relief from his symptoms for about a month but then the pain returned at the same level.
49He has not seen his sports physiotherapist since 22 July 2020. He saw his osteopath, Ms Tina Mai about one month ago and has had four, maybe five consultations this year and a similar number last year.[40]
[40] T 74
50The plaintiff agreed he had seen his general practitioner four times for his left shoulder since the transport accident and that he had seen Mr Evans the orthopaedic surgeon twice. He has also seen his myotherapist for manual manipulation four or five times this year.[41] He agreed he had also seen these therapists from time to time prior to his traffic accident for the supraspinatus in his left shoulder.
[41] T 75
51On 30 May 2023, Mr Matthew Evans, shoulder and knee surgeon, wrote to the plaintiff’s general practitioner, Dr Wan, requesting MRI scans and suspecting that the plaintiff may end up needing to have his rotator cuff tear repaired and a subacromial decompression performed. In his next letter dated 21 June 2023 Mr Evans stated:
“I think he would benefit from surgery to repair the rotator cuff, remove the under surface of the acromion to create more space for the repaired rotator cuff to function, and to clean out the arthritic and inflammatory change in his AC joint. This is a keyhole operation that takes about 90 minutes. Aleks would be in hospital overnight, in a sling for four weeks, and then undergo a physiotherapy program over the course of about six months to restore range of motion and function to his shoulder.”[42]
[42] DCB 17
52Dr Ponnaren Pak, orthopaedic surgeon prepared a medico-legal report dated 26 June 2023. Dr Pak recommended surgery, namely “a repair of the rotator cuff, perhaps an AC joint excision with removal of the lateral clavicle in order to address the AC joint arthritis.”[43]
[43] DCB 22
53In cross-examination, the plaintiff confirmed he has elected not to proceed with the surgery as the risks outweigh the benefits. When asked whether he takes medical advice the plaintiff stated, he takes it into consideration, and that “there is a large associated amount of risks with going through and having so many operations done.”[44] He stated, “I’ll see how I go with conservative treatment. And as far as I’m concerned, it was successful.”[45]
[44] T 78
[45] T 80
54In his first affidavit the plaintiff deposed he took Panadol, Voltaren and Nurofen most days for pain relief. He also takes Glucosamine, Magnesium and Omega-3 and uses an infrared lamp to assist with muscle function.[46] He sees his osteopath every three weeks, and also has received physiotherapy treatment, myotherapy and remedial massage. He has also tried dry needling and cupping to try and reduce his left shoulder pain.[47]
[46] PCB 16
[47] PCB 17
55In his second affidavit the plaintiff stated he has continued with conservative treatment including myotherapy, acupuncture, osteopathy and remedial massage. He also performs exercises and stretches recommended by his treating health practitioners.[48] He takes Panadol most days of the week and when the pain is more severe, he also takes Nurofen when his left shoulder pain is aggravated, his shoulder feels more weak or restricted. Nurofen has a side effect of causing stomach upset so he avoids taking it as much as possible. He also takes Voltaren once or twice a week, which is also trying to reduce. He also takes Magnesium as well as Turmeric and Omega-3 and uses an infrared lamp daily as well as applying Voltaren topically.[49]
[48] PCB 23-24
[49] PCB 24
56The plaintiff also continues with exercises using a tennis ball and a foam roller and theraband for stretching.
57The plaintiff deposed he was reluctant to have surgery because of long-term risks and the likelihood surgery could worsen his restriction levels and strength in his shoulder. He is also worried about possible complications, relapse and increased likelihood of arthritis. The plaintiff’s preference is to avoid having surgery and explore conservative options.[50]
Medical evidence
[50] PCB 25-26
Plaintiff’s treating practitioners
58The plaintiff’s general practitioner Dr Wan prepared two reports. The first report dated 21 March 2023 has been referred to on a number of occasions in cross-examination as it stated the plaintiff seems to have a full range of movement with his left shoulder, has no clear restrictions and should have full capacity for work.[51]
[51] PCB 48-49
59In his second report dated 17 July 2023, Dr Wan notes the plaintiff reports the pain remains throughout this (sic) years and a report by Dr Pak states Mr Evans recommends surgery. The report notes the plaintiff has persistent pain over his left shoulder, mainly at his AC joint.[52]
[52] PCB 51
60The defendant’s counsel put to the plaintiff that since March 2020 he had only mentioned his left shoulder to his general practitioner, Dr Wan on four occasions. The plaintiff stated he did not have much need to mention it to Dr Wan as the general practitioner could do two things, either prescribe pain medication or write a referral, and the plaintiff had “gone and sought other means of treatment.”[53]
[53] T 32
61In a report dated 3 May 2021, Mr Greg Dea, sports physiotherapist, stated he first assessed the plaintiff on 19 March 2020 and viewed the MRI report dated 18 March 2020. He observed the plaintiff’s clinical presentation was consistent with the reported accident and the conclusion of the MRI report that “he had a painful, limited use of his left upper limb with swelling noted, pain provoked with stress testing of the AC joint as well as some secondary mobility dysfunction (less than minimum range of motion) in the thorax and cervical regions”.[54] The plaintiff was treated by local class four laser therapy to the left AC joint, rigid taping to the AC joint to stabilise it, and mobilisation to the lower cervical spine and was prescribed low level isometric and active assisted exercises.[55]
[54] PCB 40-41
[55]PCB 40-41
62Mr Dea reviewed the plaintiff again on 26 March 2020,[56] and on 27 April 2020. On 27 April 2020, the plaintiff reported he had an episode of push ups where the joint became swollen and sore again. Mr Dea again treated the local joint with class four deep laser therapy, strapped it for support with rigid tape as well as discussed load management as he returned to higher levels of function after this acute flare up. A criterion for progression to return to push ups was discussed, with a progressive loading plan to be discussed after that.[57]
[56] PCB 41
[57]PCB 41
63Mr Dea noted on 6 May 2020 and 7 May 2020 he was corresponding with the plaintiff by text message when the plaintiff advised “nothing has changed outside of push ups and running. It’s developed a constant dull ache from the area. Exacerbated when bringing the arm behind the body. Movement in the arm just from performing gate produces small amounts of pain”. Mr Dea referred the plaintiff to Sports and Exercise Medicine Specialist Dr Branson to assess the appropriateness of a medication to settle the joint irritation. Mr Dea confirmed he had not seen or heard from the plaintiff since 22 July 2020 and therefore could not offer an opinion.[58]
[58] PCB 42
64The plaintiff was taken to a clinical note by Mr Greg Dea, physiotherapist dated 27 April 2020 referring to the plaintiff’s “L AC joint swollen again secondary to 120 push ups.”[59] The plaintiff stated he did not recall doing that level of push ups and that “it took me well over a month just to reach the arm over the head, let alone to bear weight. And that’s a month after the accident, so…”.[60] The plaintiff stated at the time his saw the shoulder injury as a little speed bump and was trying to shrug it off. He also stated, “there might have been an attempt to perform that level of activity – I don’t know over what timeframe.”[61]
[59] DCB 76
[60] T 55
[61] T 55
65The plaintiff’s treating shoulder and knee surgeon, Mr Matthew Evans provided a letter dated 30 May 2023 to Dr Wan. Mr Evans noted:
“Aleks has a myriad of ongoing symptoms and he is keen to get his shoulder improved. He describes pain using his arm away from his side and overhead as well as pain in his sternum, in his neck, in his jaw, and pins and needles distally in the left upper limb.”[62]
[62] PCB 52
66On examination, Mr Evans noted shoulder limitations and strength testing which caused pain. He noted the plaintiff has fairly widespread tenderness but most of the tenderness is over his AC joint.
67In a report dated 17 July 2023 to the plaintiff’s solicitors, Mr Evans noted he saw the plaintiff again on 21 June 2023 following an MRI scan. He noted “the MRI demonstrated some post-traumatic arthritic change in the AC joint as well as this are near full thickness tear of the anterior supraspinatus which appeared to be impinging on the overlying acromion.” Mr Evans recommended surgery. In his opinion the plaintiff symptoms relate to both rotator cuff tear and the AC joint and in his opinion the road traffic accident contributed to the AC joint injury and may subsequently have caused an aggravation of his rotator cuff tear. In his opinion the plaintiff’s prognosis was fair.[63]
[63] PCB 55-56
68In a report dated 8 August 2023 Ms Tina Maio, treating osteopath, noted she viewed the MRI scan from 21 October 2020 and an X-ray from 11 March 2020 which showed superior displacement of the distal AC joint. Taking a conservative approach to improve range of motion and reduce pain, Ms Maio noted the most effective treatment has been radial shockwave therapy.[64]
[64] PCB 58
Medico-legal reports
69Mr Gary Grossbard, orthopaedic surgeon, prepared a medico-legal report for the plaintiff dated 22 October 2021 for the plaintiff. He noted the plaintiff’s left shoulder is his major concern. He noted the plaintiff:
“has pain over the acromioclavicular area most of the time. He describes this as being a variable dull ache. There are sharp episodes of pain when he lifts his arm overhead or if he undertakes activity such as push-ups. He told me these episodes of sharp pain occur intermittently, approximately each ten days.”[65]
[65] PCB 63
70He noted the major injury has been a subluxation of the left acromioclavicular joint managed conservatively. In his opinion, the plaintiff had a whole person impairment of 9% in relation to the orthopaedic injuries from the transport accident. He regarded his situation as stable and unlikely to change significantly in the foreseeable future.[66]
[66]PCB 65
71Dr Peter Blombery, consultant physician, prepared a medico-legal report for the plaintiff dated 11 July 2023 for the plaintiff. He noted the plaintiff complained of ongoing pain in the left shoulder around the acromioclavicular joint and that when he tried to use his left arm, he developed sharp pain over the top of his shoulder with slight swelling. The pain radiated to the elbow, and he had pins and needles in the left hand particularly in the left fourth and fifth fingers. He noted the plaintiff could be awakened from sleep by the pain.[67]
[67]PCB 84
72Dr Blombery’s opinion was that the pain experienced by the plaintiff is caused by the pathology and is still present and “that most of his pain is caused by the ongoing pathology in his left shoulder. These are all organic disorders of the shoulder and of the pain nerve pathways.”[68] He noted the injury has had a very major impact on his lifestyle and limits the plaintiff in his work as well as his leisure activities to a very significant and serious degree.
[68]PCB 86
73Dr Blombery noted the plaintiff’s prognosis for recovery is poor and is probably the same regardless of whether he has surgical intervention or not.[69]
[69] PCB 87
74Dr Ponnaren Pak, orthopaedic surgeon, prepared medico-legal report for the defendant dated 26 June 2023. He noted the plaintiff complained of persisting dull ache in the AC joint with weakness in the shoulder. He noted he reported difficulty with loading the shoulder and that he complained of clicking as well as pins and needles radiating to the hand.[70]
[70]DCB 20-21
75In his diagnosis he stated the plaintiff “had the left AC joint disruption and he has likely developed secondary post-traumatic arthritis of the AC joint. This correlates with discomfort and pain in the AC joint...has had a pre-existing supraspinatus tendon tear. This may contribute to the current presentation of weakness and loss of function. It is feasible that the road traffic accident aggravated and accelerated functional loss from the pre-existing supraspinatus tendon tear.”[71] He recommended the plaintiff have a repair of his rotator cuff and perhaps an AC joint excision with removal of the lateral clavicle in order to address the AC joint arthritis.
[71] DCB 23
Defendant’s submissions
76The defendant’s counsel submitted the plaintiff has been able to work and take annual leave, not related to his injury, go to Queensland and South Australia, as well as go on a work-related trip to New Zealand earlier this year.
77He submitted the plaintiff continues to be an active participant in many aspects of life and as noted by Mr Dea, soon after the transport accident he was still active in gym.
78In his submission about aggravation, the defendant’s counsel stated that pre-transport accident, three investigations showed the plaintiff was developing a rotator cuff tear, demonstrating the plaintiff has had ongoing complaints from 2011 onwards through to 2017. Mr Barwood’s advice was if he continued on with gym work it will get worse and that is exactly what happened. The rotator cuff injury has got worse and the plaintiff states up until 2020 he was lifting 243 kg. Despite seeing three orthopaedic surgeons prior to the transport accident, following the transport accident he has only seen one. Counsel’s submission was that it was the earlier injury that affected him more. His current general practitioner started treating him in 2015 and his report from March 2023 is “absolutely pertinent”, which stated, “He seems to have full range of movement with his left shoulder and has no clear restriction to his normal activities and function. He should have full capacity for work”. The March 2023 report is unambiguous and there was no reason for Dr Wan to change his opinion in the July 2023 report.
79Counsel submitted the plaintiff takes no prescription pain killing medication. He has made no complaints to his general practitioner about work or day to day living activities. Counsel submitted the plaintiff’s refusal to have surgery that may help him has to be reconciled with his claim to be suffering a great deal from the claimed injury to his shoulder. He takes minimal medication; the amounts he takes are unclear. He continues to be active and takes minimal treatment. His only recent treatment is with his osteopath Dr Tina Maio. His ability to do work around the home is not corroborated by his partner and the evidence of what he cannot do is minimal.
80Further, it was unclear why the plaintiff has not re-applied to join the Army Reserves and he queried why he did not get a clearance certificate from his general practitioner that he was fit for all army reserve activities.
Plaintiff’s submissions
81Plaintiff’s counsel submitted there was no challenge by the defendant to the plaintiff’s evidence in his affidavits about ongoing pain, ongoing limitation, ongoing activities and the effect on his activities. There was no reference in the medical materials about abnormal illness behaviour because the plaintiff has a clear organic basis for a significant injury for which doctors suggest surgery.
82The plaintiff was exceptionally physically able and active before this transport accident. He enjoyed the gym and pushing his body to its limits. Counsel referred to the plaintiff as a “gym junkie.”[72]
[72] T 2
83In his submissions regarding aggravation, plaintiff’s counsel noted he had a prior problem with the left shoulder which stretched over a number of years. However, from March 2017 until the transport accident, he went to the general practitioner 20 times and never mentioned his left or right shoulder. His evidence should be accepted that leading up to the transport accident his left shoulder was fine, and he had the capacity to lift 243 kg.
84In his July 2023 report the general practitioner Dr Wan has ‘pulled back’ from his March 2023 opinion. He notes the plaintiff reports the pain in his left shoulder remains and Mr Evans and Dr Pak have suggested surgical repair for identified pathologies of his left shoulder. The MRI’s and the X-rays show that this is not just an aggravation but also a specific injury to the AC joint. There is no medical evidence to support the defendant’s case that the plaintiff has aggravated his shoulder between 2017 and 2020 by going to the gym. This a frank, severe accident.
85The plaintiff also enjoyed natural treatments rather than medication and surgery. Mr Barwood recommended surgery, but Associate Professor Bell did not, he administered the two cortisone injections which gave him substantial relief. It was submitted his shoulder grumbled along until 2017 and thereafter gave him no problems. The approach to surgery was not unanimous and Associate Professor Bell was “not just a second opinion.”[73]
[73] T 106
86Counsel noted Dr Pak’s use of the qualifiers, “appropriate and successful surgery” and noted the plaintiff was worried about that and entitled to be so. Whilst Mr Evans recommended rotator cuff repair of the supraspinatus tendon, Dr Pak considered the excision of the AC joint which, counsel submitted, is additional and substantial surgery. It was submitted it is reasonable for the plaintiff to be cautious about surgery without a guarantee his shoulder will not get worse.
87The plaintiff has sought treatment other than from his general practitioner, such as the physiotherapist, osteopath and myotherapist.
88In summary the plaintiff’s counsel submitted the plaintiff’s considerable pain, interrupted sleep, limitation of activities, particularly gym activities are of substantial importance to him, as well as his limitation with some household work. There has been no challenge to these consequences and that as of 10 March 2020 the day before the accident he had no symptoms. He had a vulnerability due to the tear in his tendon which had not troubled him for a number of years. The plaintiff had applied to join the Army Reserves but was now unable to pursue that interest and ambition.
The plaintiff’s credit
89Although the plaintiff was robustly cross-examined, the defendant’s counsel did not make submissions about the plaintiff’s credit. The plaintiff’s counsel submitted he was a truthful witness who sometimes gave answers that did not advance his case and that he was thoughtful and considered in his evidence.
90The plaintiff’s evidence about his prior shoulder injury and the entries in the medical records after the transport accident were heavily scrutinised in cross-examination. He was also cross-examined about his treatment regime and his interest in the Army Reserves.
91In my assessment he was an intelligent man, and his credit was not impugned. He was a truthful, measured, and a reliable witness. Further, in cross-examination, aside from the questions about the Army Reserves, few of the consequences of the transport accident detailed in his two affidavits were challenged by defendant’s counsel.
Findings and reasons
92The consequences of the injury must be serious to the particular plaintiff, and the question to be asked is: “can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[74]
[74]See Humphries and Anor v Poljak [1992] 2 VR 129. Also see Mobilio v Balliotis & Ors [1998] 3 VR 833
93The defendant’s case was that the earlier 2011 left shoulder injury was more severe and enduring than the transport accident injury. The evidence is clear the plaintiff had a prior injury to his left shoulder tendon dating from 2011 from overuse at the gym. I accept it was problematic between 2011 and 2017. I accept the plaintiff investigated surgical options but ultimately decided on conservative treatment. I accept the plaintiff’s evidence and the medical evidence that whilst there was a prior injury, the left shoulder had been essentially asymptomatic for the three years prior to the transport accident. I find the aggravation injury is the injury to the pre-existing supraspinatus tendon tear.
94In this case there are two parts to the one injury: the new injury to the AC joint and the aggravation injury to the tendon. As the left shoulder is the one body function, I now consider whether the consequences from the combined injury meets the serious injury test.
95The plaintiff’s injury is supported by the medical evidence. The supporting pathology is strong and confirmed in the reports of Mr Grossbard, Dr Blombery and Dr Pak. The plaintiff has a new injury to his left shoulder region involving the acromioclavicular joint for which he has had two guided injections and an aggravation injury to the supraspinatus tendon. All the doctors recommend surgery. I accept the plaintiff’s evidence that he did not continually report his left shoulder pain to his doctor because all his general practitioner could do was either prescribe pain relief medication or refer him to a specialist. I disregard Dr Wan’s report dated 21 March 2023 as I accept the plaintiff’s evidence Dr Wan did not examine him for the purposes of that report. The plaintiff has preferred to avoid surgery and prescription medication and sought his own treatment regime through other health professionals.
96The consequences of the injury are such that the plaintiff is in constant ongoing pain. He describes it as constant aching pain in his AC joint present most of the time. The pain is aggravated by movement and radiates down his left arm into his hand. He describes it as, “my pain and restriction can be aggravated unexpectedly and bring on a range of different symptoms consequences.”[75] He describes the pain as quite temperamental, and he gets a sharp localised pain when he increases the use and mobility of his left shoulder or arm.
[75]PCB 27
97The plaintiff has purposefully limited his treatment of his pain. He avoids prescription medication and takes only Nurofen and Voltaren. He has a range of home remedial treatments such an exercise regime, using an infrared lamp and taking supplements. He stated he is focusing on conservative treatment.[76] This has included a range of non-invasive treatments such as laser therapy and taping by Mr Dea and radial shock waves by Ms Maio. He saw his myotherapist four or five times this year.[77] He last saw his osteopath a month ago, and before that he says he had maybe four or five consultations this year, and a similar amount last year.[78] In his second affidavit, the plaintiff stated he has not been able to afford paying for conservative treatments such as physiotherapy, osteopathy, myotherapy or remedial massage on a consistent ongoing basis in light of the TAC not providing funding.[79] He has adequately explained in his affidavit material and in cross-examination his reservations about having shoulder surgery. I accept the medical advice about surgical options was not uniform.
[76] PCB 23
[77] T 75
[78] T 74
[79] PCB 24-25
98The disabling effect of pain include that the plaintiff’s sleep is disrupted, and he is awoken at night if he rolls onto his left side. This is documented in his first and second affidavits. In relation to sleep, President Maxwell in Haden Engineering Pty Ltd v McKinnon[80] stated; “It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”[81] In this case the plaintiff’s sleep is so disrupted that he and his partner often sleep separately.
[80] [2010] VSCA 69 at paragraph [45]
[81] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [45]
99He has restricted movement and has difficulty raising his left arm above his shoulder. This means he is no longer able to put items in overhead cupboards or hang the washing out.
100The plaintiff came across as a stoic person who has continued to work despite his injury. He describes experiencing pain using a keyboard and his work duties are restricted to the extent he has difficulty with configuring testing apparatus at work and relies on the assistance of other team members to do any repetitive or heavy physical tasks.
101The restriction and pain has also impacted the plaintiff’s ability to pursue his activities in the gym which were a significant component of his recreational interests. Having said that, his second affidavit notes that swelling in his left shoulder comes on if he tries to increase the load when doing left shoulder exercises or lifting a weight off the weight rack in the gym. He states he avoids doing left arm, overhead exercises, chest exercises or shoulder presses and thus many exercises are no longer performed because of his left shoulder injury. This evidence confirms he is still attending the gym although to what extent is unclear.
102His application for the Army Reserves had progressed to the extent he had been placed on the standby list just prior to the transport accident. As a result of a shoulder injury, he does not believe he can pursue his application which has cruelled this dream. I accept his evidence he desired to serve his country and, given his very keen interest in weightlifting, he desired the physical challenge it offered.
103I accept the contents of the plaintiff’s affidavits and his evidence with regards to the pain and suffering consequences of his injury.
104I take into account the pain and suffering consequences of the impairment considered as a whole and the pain and suffering experienced by the plaintiff to which the compensable injury materially contributes.[82] The pain consequences are described as ranging from a constant ache to unexpected aggravation when he uses his arm. The plaintiff is restricted in his activities at home and in the gym and cannot pursue an ambition to join the Army Reserves. The plaintiff has managed his pain through a conservative treatment regime of exercises, over-the-counter medication, myotherapy, acupuncture, remedial massage and osteopath.
[82] See Sutton v Laminex Group Pty Limited [2011] VSCA 52 at paragraph [114]
105The medical evidence from Mr Grossbard and Dr Blomberry supports the injury is long term, at least for the foreseeable future.
106It is a relevant consideration to look at the likely period these consequences will be experienced, and at age 35, the plaintiff is young man in his prime.[83]
[83] See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [43]
107These consequences combined are serious for the plaintiff and I am satisfied on the balance of probabilities the combined consequences of the injury are serious to the plaintiff when judged by comparison with other cases in the range of possible impairments and losses and are at least “very considerable” and certainly more than “significant” or “marked”.
108Leave is granted to the plaintiff to commence common law proceedings for the left shoulder injury he suffered in the transport accident on 11 March 2020.
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or disorder after his counsel’s opening address. In closing submissions at Transcript 116 -117 the
plaintiff’s counsel noted the consequence for the plaintiff (referred to in his affidavits) of not being able
to ride his bike was relevant to subparagraph (c), therefore not applicable to the subparagraph (a) claim.
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